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Beltran, v. Interexchange, Inc.
United States District Court, D. Colorado
February 21, 2018
JOHANA PAOLA BELTRAN, LUSAPHO HLATSHANENI, BEAUDETTE DEETLEFS, ALEXANDRA IVETTE GONZALEZ, JULIANE HARNING, NICOLE MAPLEDORAM, LAURA MEJIA JIMENEZ, and SARAH CAROLINE AZUELA RASCON, Plaintiffs,
INTEREXCHANGE, INC., USAUPAIR, INC., GREATAUPAIR, LLC, EXPERT GROUP INTERNATIONAL INC., d/b/a Expert AuPair, EURAUPAIR INTERCULTURAL CHILD CARE PROGRAMS, CULTURAL HOMESTAY INTERNATIONAL, CULTURAL CARE, INC., d/b/a Cultural Care Au Pair, AUPAIRCARE INC., AU PAIR INTERNATIONAL, INC., APF GLOBAL EXCHANGE, NFP, d/b/a Au Pair Foundation, AMERICAN INSTITUTE FOR FOREIGN STUDY, d/b/a Au Pair in America, AMERICAN CULTURAL EXCHANGE, LLC, d/b/a GoAuPair, AGENT AU PAIR, A.P.EX. AMERICAN PROFESSIONAL EXCHANGE, LLC, d/b/a ProAuPair, 20/20 CARE EXCHANGE, INC., d/b/a The International Au Pair Exchange, ASSOCIATES IN CULTURAL EXCHANGE, d/b/a GoAu Pair, and GOAUPAIR OPERATIONS, LLC, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION TOB COMPEL AND FOR RELIEF (DOC. #
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' Motion to
Compel and For Relief Under Federal Rules of Civil Procedure
26 and 37 (the “Motion to Compel”). (Doc. # 842.)
Plaintiffs challenge Defendant Cultural Care, Inc.'s
clawing back of documents written by Ilir Zherka (the
“Zherka Documents”), the Executive Director of
the Alliance for International Exchange (“the
Alliance”). (Id. at 1.) For the reasons
discussed below, the Court grants in part and denies in part
Plaintiffs' Motion to Compel.
Zherka Documents are hand-written notes from teleconferences
between the Alliance and several Defendants. (Id.)
According to Plaintiff, they “confirm Defendants'
coordination and intent not to compete on au pair
wages.” (Id.) The Zherka Documents were
produced without redaction by three other Defendants and were
used in at least seven depositions at which Defendant
Cultural Care was present. (Id. at 2-3.) However,
during the deposition of Zherka on January 29, 2018,
Plaintiffs assert that Defendant Cultural Care
“disrupted” the deposition with
“incredible” new privilege claims. (Id.)
filed the Motion to Compel now before the Court on February
10, 2018. (Id. at 16.) Plaintiffs argue that the
Zherka Documents could never have been privileged and that
any privilege that could have applied was waived long ago.
(Id. at 4- 5.) Plaintiffs request an award of
attorneys' fees and costs, blaming Defendant Cultural
Care for causing “even more filings without cause over
an already over-litigated case.” (Id. at 5.)
February 12, 2018, this Court issued an Order (the
“February 12 Order”) Reversing in Part the
Magistrate Judge's Order (Doc. # 763) on Plaintiffs'
other, related Motion to Compel (Doc. # 710). (Doc. # 843.)
This Court ordered the Alliance to produce seventy-seven
pages of its communications without redactions because it
concluded that the Alliance's documents were protected by
neither work product privilege nor attorney-client privilege.
(Id. at 14.)
light of this Court's February 12 Order, Defendant
Cultural Care concedes that it now “has no remaining
bases on which to oppose Plaintiffs' Motion [to
Compel.]” (Doc. # 849 at 1.) It requests that the Court
deny Plaintiffs' request for attorneys' fees and
costs, rejecting Plaintiffs' “unfounded
mischaracterizations” of it and its counsel's
conduct as untrue and “unproductive.”
(Id. at 3.)
replied in support of their request for attorneys' fees
and costs on February 16, 2018. (Doc. # 856.) With the
Court's leave, see (Doc. # 897), Defendant
Cultural Care filed a surreply to further dispute
Plaintiffs' assertions on February 20, 2018, see
(Doc. # 893-1).
PRODUCTION OF THE ZHERKA DOCUMENTS
Court explained at length the law relevant to this Motion to
Compel in its February 12 Order. See (Doc. # 843.)
That explanation is incorporated herein by reference. As
Plaintiffs and Defendant Cultural Care now agree, the Zherka
Documents are not privileged communications.
See (Doc. # 849 at 1; Doc. # 856 at 1). The Court
therefore grants in part Plaintiffs' Motion to Compel and
orders the Alliance to produce the Zherka Documents without
ATTORNEYS' FEES AND COSTS
Rule of Civil Procedure 37 governs costs and fees related to
discovery disputes. Where, like here, a motion to compel
disclosure or discovery is granted, “the court must,
after giving an opportunity to be heard, require the party or
deponent whose conduct necessitated the motion, the party or
attorney advising that conduct, or both to pay the
movant's reasonable expenses incurred in making the
motion, including attorney's fees.” Fed.R.Civ.P.
37(a)(5)(A). However, the court “must not order this
payment if: (i) the movant filed the motion before attempting
in good faith to obtain the disclosure or discovery without
court action; (ii) the opposing party's nondisclosure,
response or objection was substantially justified; or (iii)
other circumstances make an award of expenses unjust.”
Id. (emphases added). Substantial justification
requires that an argument or response is “justified to
a degree that could satisfy a reasonable person, ” but
it need not be correct. Pierce v. Underwood, 487
U.S. 552, 565, 566 n.2 (1988). See also Peterson v.
Hantman, 227 F.R.D. 13, 16 (D.D.C. 2005) (“a party
meets the ‘substantially justified' standard when
there is a ‘genuine dispute' or if
‘reasonable people could differ' as to the
appropriateness of the action” (quoting Pierce, 487
U.S. at 565)).
reasons this Court explained in its February 12 Order, the
Court is of the opinion that Defendant Cultural Care's
opposition to production of the Zherka Documents may have
been substantially justified. See (Doc. # 843 at
24-25.) The Court ...